Government proposals are sounding the death knell for the ASBO and offering social landlords a new, streamlined approach to anti-social behaviour. Against a backdrop of cuts, Alex Turner asks if they are being offered the legal powers they need
It was a flagship policy that became an iconic stick to beat people with, and for some, an equally iconic badge to wear.
But time is now running out for the anti-social behaviour order - more commonly known as the ASBO - and the complex jigsaw of anti-social behaviour measures that came in its wake. For years critics - including landlords, police, and politicians - complained that Labour’s ASB tools were complex, bureaucratic, and ultimately ineffective. Now the coalition government is overhauling ASB legislation, making it simpler and more flexible to apply to the circumstances of different communities, but will it work?
Last week, the Home Office ended a three-month consultation on its proposed new ASB toolkit. It plans to streamline 18 measures down to just five. ASBOs, injunctions and other orders against individuals would be replaced with new criminal behaviour orders and crime prevention injunctions. Meanwhile, a swathe of sanctions relating to place-specific ASB, from crackhouse closures down to litter clearing notices, would come under the umbrella of two levels of community protection orders. Some of these tools can be used by all social landlords - others are restricted to just local authorities and police.
The weak link
To many, simplifying the labyrinthine suite of ASB-related powers makes sense. Yet concerns are mounting that in doing so landlords are being denied the legal remedies they really need at a time when they are under increasing pressure to tackle ASB. Landlords are being told to meet the respect standard for excellence in combating ASB, also up for review this year, and are expected to pick up the slack from under-resourced police and local authorities as they are hit with crippling cuts. But experts warn that the proposed changes could leave landlords with fewer powers to do so.
Labour has been quick to seize on what it perceives as weakening a successful approach. Shadow Home Office minister Diana Johnson suggests coalition zeal for scrapping the ASBO is indicative of an ill-thought out, knee-jerk response that will see a reduction in agencies’ abilities to deal effectively with ASB.
‘The government’s ASB review has been rushed and chaotic, which is one reason why they have had to extend the consultation period,’ the Labour MP says. ‘They should not be scrapping ASBOs and reducing the powers available to crime reduction partnerships to tackle serious anti-social behaviour. Housing associations have a key role to play in this regard. The government needs to help and not hinder the fight against anti-social behaviour and make sure the necessary powers are available to those involved.’
Listen to landlords
Ms Johnson’s comments receive partial backing from Tess Ash, ASB advisor to the Chartered Institute of Housing. She stresses that as frontline ASB experts, landlords must not be alienated.
‘Over the past 10 years they [landlords] have been one of the key drivers in tackling ASB. All the statistics indicate that a large proportion of complaints are dealt with by social landlords and never get anywhere near the courts, or the police. Landlords are generally very good at tackling ASB and I’d hope that their views are taken into account.’
A key area of concern centres on the crime prevention injunction, designed to supersede the anti-social behaviour injunction and ASBO with a single order suitable for all ages. Landlords, lawyers and professional bodies all appear to be in favour of retaining the ASBI, on the grounds it has been a highly effective tool for nipping serious ASB in the bud.
‘Talk to any provider who uses the ASBI effectively, and they’ll want it to stay,’ says Ms Ash. ‘It’s their bread and butter, and they do actually work. Staff are used to them, courts are, legal advisors are - the tests in terms of legal arguments have gone through, and people are comfortable with the use of the ASBI.’
The fear is that tampering with such a tried and trusted power will leave a legal vacuum in which it is harder to take action. Holding onto the ASBI alongside any new injunctive orders is seen as offering a valuable insurance policy.
There are also concerns around the mooted division of powers under the community protection order. These would ask landlords to take on increased responsibilities, such as issuing fixed penalty notices, but would deny them the opportunity to take the lead on pursuing more serious sanctions such as premises closures - which would remain in the hands of police and councils. Jonathan Hulley, partner at law firm Clarke Willmott suggests this is an arbitrary and needlessly limiting approach.
‘In the new reality of cuts, you’re looking at doing away with crackhouse closures, to be replaced by an order that only the police or local authority can apply for,’ he points out. ‘In my experience of acting for social landlords, where they want a property closed they are desperately keen to be able to apply to the magistrates’ court themselves.’
Mr Hulley argues that even though landlords may not regularly use all measures available to them, differences in joint working between police and councils across the country make it prudent for all partners to be as well-equipped as possible. But Sue Hird, head of tenancy compliance for Manchester-based New Charter Housing Trust, which deals with 1,400 ASB cases a year, reckons those with strong agreements in place have nothing to fear.
‘We are ambivalent [about being limited by the new orders] - we’ve got a very good partnership with our local authority and police and will be working hard to keep that and make it work for us,’ she says. ‘I understand there’ll be resourcing restrictions, but we’ll be working hard with our colleagues to the best of our abilities and will share responsibilities - and if we were given [additional powers] we’d still use the partnership.’
With the exception of the ASBI repeal, Ms Hird is broadly supportive of the reforms. As far as New Charter is concerned, the changes represent a commonsense boiling-down process that will make it far clearer what individual organisations can and can’t do.
Tellingly, this is exactly the line taken by the Social Landlords’ Crime and Nuisance Group, which promotes best practice in tackling ASB. The group, which includes solicitors and police forces as well as housing providers among its members, endorses most of the proposals while accepting that the financial climate will throw up challenges.
Keeping the status quo
Yet some question whether the current system needs overhauling at all. Paul Webb, head of customer policy for the Guinness Partnership, maintains that there is fundamental disagreement with the notion that palette of actions is too large, stating that from his perspective working for an association which deals with 3,300 cases a year, it does the job just fine.
Mr Webb’s view is backed by Jane Plant, an associate at law firm Weightmans. In her experience the outgoing measures, including ASBOs, have often been highly effective when used by well-trained staff, allowing landlords to take the lead and combine orders against individuals with the threat of possession.
‘I don’t think there is any need for change,’ says Plant. ‘From housing providers’ perspective things are working well, they have the tools that they need, and if there are excess ones they just don’t use them.’
But with maintaining the status quo not an option, landlords will need to turn their attention to the practicalities of using a revised toolkit that will see injunctive powers brought against minors for the first time. Ms Plant flags up several likely difficulties - not least the question of which court applications against minors would be heard in.
‘It seems likely that they’d be kept in the magistrates’ courts,’ she surmises. ‘It’s a civil penalty, which ASBOs always were, but [unlike ASBOs] there’s no criminal penalty following breaches, so they’ll have to go back before a district judge to commit to prison using civil committal rules - which magistrates wouldn’t be able to do. It’s a bit of a muddle really. They’re talking about putting all the injunctions in the magistrates’ courts, but in my view that wouldn’t work - you have to keep [adult] injunctions in the civil courts [where there is expertise in using them].’
There will doubtless be many other hurdles to clear, including the bedding-in period required with any fresh legislation and the likelihood of legal challenges to the changes. How cuts to youth offending services and other support agencies will square with a focus on preventative measures is also unclear - and no one is in a position to say exactly what the functional make-up of partnerships charged with ASB management will be two years down the line, when the new measures are likely to take effect. But all these problems pale in comparison to the most fundamental point: if landlords are not able to use all these tools then residents may be left pining for the era of the ASBO.
From ASBO to where? The government’s proposed overhaul of anti-social behaviour law
Even experienced anti-social behaviour practitioners sometimes struggle to comprehend the raft of legislation associated with the subject. We break down what the proposed new approach could mean in practice for landlords.
Criminal behaviour order
The closest thing to an anti-social behaviour order to survive the proposed cull is the criminal behaviour order. The CBO would work like the existing ASBO, in that it would be a civil order that could be attached to a conviction for any offence committed by anyone over the age of criminal responsibility.
The CBO aims to improve on the rather one-dimensional CRASBO (criminally sought anti-social behaviour order) by including scope for a greater range of prohibitions to be attached, as well as positive requirements to address underlying causes behind the ASB. As a crime-related order, it would be police-led, but for under-16s relevant authorities including housing providers could be invited to prepare a report on individuals’ family circumstances to help shape the order or inform applications for additional support and interventions.
Crime prevention injunction
The crime prevention injunction aims to combine powers currently contained within the stand-alone ASBO, most frequently used for young people, and the ASB Injunction into a new civil order.
To obtain a CPI, the applicant would have to prove on the ‘balance of probabilities’ that an individual was engaging in ASB. The order would include prohibitions on an individual’s behaviour as with injunctions, but could also involve positive measures to address underlying problems.
Housing providers are in favour of keeping the ASBI alongside the new measures, because of its speedy availability and proven effectiveness and because county courts are familiar and comfortable with the power.
There is uncertainty over where applications for under-18s would be heard under the new system, as injunction laws would have to be modified to enable sanctions for breaches appropriate to minors. The alternative, hearing some or all applications in magistrates’ courts, would throw up different problems, not least magistrates’ unfamiliarity with injunction hearings.
Community protection order
Community protection orders would replace a raft of measures ranging from premises closure orders covering serious drug and sex-trade related ASB, down to dog control orders and litter clearing notices. They are broken into levels one and two.
More serious orders relating to premises closure or restriction and dog control would be designated level two and would only be available to police and local authorities, which would have to apply to court. Less serious level one orders would be notices available to housing providers, attracting fixed penalty notices if breached.
Opinions are divided over the use of CPOs, which would place additional responsibilities onto landlords (enforcing level one breaches), while denying those with the know-how and capabilities the opportunity to lead on level two orders. This could have a negative impact in areas where police and local authorities are too stretched to prioritise CPOs